New Federal Regulation Favoring "Conscience?"

The Department of Health and Human Services has a proposed regulation up for public comment that would apparently provide protection for doctors who do not wish to perform abortions. From the story:

The proposed rule, which applies to institutions receiving government money, would require as many as 584,000 employers ranging from major hospitals to doctors’ offices and nursing homes to certify in writing that they are complying with several federal laws that protect the conscience rights of health care workers. Violations could lead to a loss of government funding and legal action to recoup federal money already paid.

Abortion foes called it a victory for the First Amendment, but abortion rights supporters said they feared the rule could stretch the definition of abortion to include birth control, and served notice that they intend to challenge the administration.

What about the birth control fear? Secretary Leavitt says no, it won’t apply. As I quickly read this, this seems right, but I think there is some room for doubt. From page 34-35 of the Notice of Proposed Rule Making:

Section 88.4 Requirements and Prohibitions
(a) Entities to whom this subsection 88.4 (a) applies shall not:
(1) subject any institutional or individual health care entity to discrimination for refusing: (A) to undergo training in the performance of abortions, or to require, provide, refer for, or make arrangements for training in the performance of abortions; (B) to perform, refer for, or make other arrangements for, abortions; or (C) to refer for abortions;
(2) subject any institutional or individual health care entity to discrimination for attending or having attended a post-graduate physician training program, or any other program of training in the health professions, that does not or did not require attendees to perform induced abortions or require, provide, or refer for training in the performance of induced abortions, or make arrangements for the provision of such training.

It seems clear that the proposal would not protect a health care worker who refused to participate in providing barrier-type birth control methods. And it would also appear that the term “perform abortions” would not apply to birth control since the dispenser of birth control doesn’t “perform” an abortion even if the method of birth control is an abortofacient. However, this analysis would also cover dispensing RU 486, which causes an abortion but which the health care provider does not perform. What about that? And if that form of abortion would be covered by the regulation, then why wouldn’t abortofacient forms of birth control? This is particularly germane since, in my quick reading, I didn’t see a definition of the term abortion (although that might exist in referenced laws, regulations, or court rulings). So, I think Leavitt is right, but I can see how it might be construed otherwise.

But this is where we are: When a culture is divided about what is right and what is wrong as ours is, and indeed, in which the very concepts seem to becoming relativized, we end up with such proposed regulations.